The Marriage and Civil Partnership (Scotland) Bill: a commentary

The Bill

As noted in the round-up on 30 June, the Marriage and Civil Partnership (Scotland) Bill was introduced in the Scottish Parliament on 27 June. The Bill is accompanied by the customary Explanatory Notes, together with Policy Memorandum and a Delegated Powers Memorandum. In addition, the Parliament’s Equal Opportunities Committee has published a call for evidence on the Bill which will remain open until Friday 23 August.

The key provisions of the Bill are as follows:

  • the introduction of same-sex marriage;
  • creating a new category of “belief” marriage and putting belief celebrants on the same footing as religious celebrants;
  • setting out the arrangements for authorising celebrants to solemnise opposite sex and same-sex marriage;
  • converting civil partnerships into marriages;
  • giving permanent authorisation to Church of Scotland deacons to solemnise opposite-sex marriage (they have had “temporary” authorisation since 1 March 2006);
  • allowing civil marriage ceremonies to take place on any premises (other than on religious premises) agreed between the couple and the registrar;
  • allowing civil partnerships to be registered as part of a religious or belief ceremony;
  • allowing those who undergo gender reassignment to stay married when obtaining the full Gender Recognition Certificate, which provides legal recognition in the acquired gender; and
  • providing a regulation-making power to prescribe the qualifying requirements for religious and belief bodies before their celebrants can be authorised to solemnise marriages or register civil partnerships.
  • A religious or belief body that does not wish to solemnise same-sex marriages will not be obliged to do so.

In many respects, the Scottish Bill resembles the Marriage (Same Sex Couples) Bill for England and Wales currently being discussed in the UK Parliament: notes in square brackets refer to parallel proceedings on the England & Wales Bill.

The forbidden degrees

Sections 1 and 22 simplify and put into gender-neutral language the “forbidden degrees” within which parties are too closely related to marry or contract a civil partnership.

[The Lords amendments to extend the scope of civil partnerships and remove the barrier of consanguinity in situations such as that of the Burden sisters – see Burden and Burden v United Kingdom [2006] ECHR 1064 – were unsuccessful].

Removing the bar on same-sex marriage

Section 2 repeals the legal impediment to marriage of both parties being of the same sex. It also amends section 5(4) of the Marriage (Scotland) Act 1977 in relation to cases where one or both of the parties are not domiciled in Scotland, making it clear that even if a same-sex marriage would be void according to the law of the domicile of one (or both) of the parties, that would not a barrier to their contracting a same-sex marriage in Scotland. It should be noted that it is perfectly possible for an opposite-sex couple not domiciled in Scotland to marry there under the existing Scots marriage law.

[In the Lords debate the Advocate General for Scotland stated that marriages solemnised by the Church of Scotland in England and Wales fall within the law of England and Wales and that the procedures set out in the Bill about opting-in by religious organisations would therefore apply to Church of Scotland churches situated in England: HL Hansard June 17 c 99.]

Authorising religious and non-religious celebrants

Besides making provision for same-sex marriage, the Bill makes further provision as to the persons who may solemnise marriages and to marriage procedure itself. Since 2005 the Registrar General for Scotland has authorised humanists as marriage celebrants ad hoc under section 12 of the Marriage (Scotland) Act 1977. However, that section was designed for the temporary authorisation of religious celebrants; and the Scottish Government considers it inappropriate to continue to use it to authorise non-religious celebrants. Sections 12 and 13 of the Bill therefore extend the existing category of religious marriage to encompass “belief” – which will mean that bodies such as the British Humanist Association will be placed on the same footing as religious bodies.

The system being put in place to authorise celebrants – by inserting the necessary new sections into the 1977 Act – is based on the current provisions for authorising celebrants for opposite-sex marriages. The exception is that Church of Scotland celebrants will not be authorised on the face of the 1977 Act to solemnise same-sex marriages.

[Humanist marriage was strongly supported during the Commons report stage debate; but the Attorney General argued that the version of the amendment under debate would fall foul of the terms of the ECHR: in his view, by mentioning humanists specifically, if enacted it would give rise to claims of discrimination from other non-religious belief organisations.  At the subsequent Lords committee stage a more general amendment based upon “an approved organization” was rejected on the grounds that the Bill was not the correct vehicle for the proposed change.]

Venues for civil marriage

Currently, a civil partnership may be registered at a registration office or at any other place which the couple and the local registration authority agree is to be the place of registration (provided it is not a place of worship. under sections 18 and 18A of the Marriage (Scotland) Act 1977, however, a civil marriage ceremony may only take place in a registration office or at place approved by the local authority – and these provisions are more onerous than those applying both to civil partnerships and to religious marriage ceremonies. The Bill therefore makes further provision as to the places at which civil marriages may be solemnised by repealing the existing rules about approved places for civil marriage. Instead, it will be possible to solemnise a civil marriage at any place agreed between the couple and the local registration authority – always provided that the marriage does not take place on religious premises. In short, the Bill completes the process, already apparent in the 1977 Act, of moving away from registering places for marriage to registering celebrants.

[Within the UK generally, although such a move was considered in 2002 following the White Paper Civil Registration: Vital Change the proposal was not adopted.]

Sham and forced marriages

According to the accompanying Policy Memorandum, the primary purpose of sections 10, 11, 12 and 22 relating to qualifying requirements to apply to religious and belief bodies is “to ensure that marriages and civil partnerships are carried out with dignity, are not sham or forced and are not carried out for profit or gain”. The Bill therefore contains a power for Scottish Ministers to prescribe qualifying requirements which a religious or belief body would have to meet before its celebrants could be authorised to solemnise marriage or register civil partnership. The second consultation on the draft Bill suggested that in order to qualify, one of the things that religious or belief body would have to demonstrate was that its celebrants were trained in areas such as tackling forced marriage and sham marriage.

Bigamy and polygamous marriage

Section 26 of the Bill makes bigamy a statutory offence and abolishes the current offence at common law. The Government considers that this adds clarity to the scope of the offence. It also believes  that the maximum common law penalty for bigamy of life imprisonment is excessive; and the Bill substitutes a maximum penalty of two years’ imprisonment or a fine (or both) in the case of a conviction on indictment.

In addition, the Policy Memorandum reiterates at paragraph 87 that the Government “[has] no intention of allowing polygamous marriages to take place in Scotland”.

[The Attorney has confirmed that polygamy is not regarded as a specific offence in England and Wales – unlike bigamy, which is a crime under s 57 of the Offences Against the Persons Act 1861: HC Hansard 17 Oct 2011 c 661W.]

Amendments to the Equality Act 2010

The Policy Memorandum states at paragraph 93 that:

“… the UK and Scottish Governments are preparing amendments to the Equality Act 2010 to provide further protection in relation to discrimination. Following comments from persons responding to the Scottish Government’s second consultation, and the approach taken in clause 2(6) of the Marriage (Same Sex Couples) Bill [ie for England & Wales], the amendment to the Equality Act for Scotland will:

  • cover religious or belief celebrants who do not wish to carry out same sex marriages or civil partnerships, even if their body has opted in. The amendment on which the Scottish Government consulted just protected against sexual orientation discrimination. The amendment now will protect against discrimination claims generally. In addition, the amendment will not now depend, as originally proposed, on there being a conflict with the celebrant’s religious or philosophical beliefs;
  • cover other persons (e.g. the organist, the choir and the choirmaster) who play an integral part in the religious or belief aspects of the marriage or civil partnership ceremony;
  • protect a person controlling the use of religious or belief premises who refuses to allow the premises to be used for a same sex marriage or civil partnership”.

What the Memorandum does not appear to deal with is the situation where a religious or belief celebrant with a conscientious objection to same-sex relationships belongs to a body that has decided, collectively, to conduct same-sex marriages. No doubt an amendment to the Equality Act 2010 can deal with the secular consequences; but how the position of dissidents will relate to their parent bodies’ internal disciplinary systems is an interesting question. Kelvin Holdsworth’s blog 10 Unanswered Questions about Same-Sex Marriage considers some of the issues that might be facing clergy in the Scottish Episcopal Church.

The timetable

It is anticipated that, should the Bill receive Royal Assent in early 2014, the first same-sex marriages will take place in 2015. It will take around 12 months to put the legislation in place.

The Government also intends to consult in September on revising sexual health education guidance to ensure that it is kept up to date. Existing guidance makes it clear that parents and carers can, following discussions with the school and the local authority, withdraw their children from classes on sexual health education. That right will be retained. Revised guidance is expected to be in place by early 2014.

Opposite-sex civil partnerships

What the Bill as introduced does not do is to make provision for opposite-sex civil partnerships. The BBC reported a Scottish government spokeswoman as saying that the Scottish government was considering the best approach to the matter and would be making an announcement “shortly” – very much in line with what is to happen in England and Wales.

The Lord Advocate’s guidelines on prosecution

Following publication of the Bill, the Lord Advocate published guidelines on prosecution of anyone opposing same-sex marriage, fulfilling his commitment prior to the launch of the consultation on the Bill. The full text is as follows:

“PROSECUTION GUIDANCE IN RELATION TO SAME SEX MARRIAGE

Criticism of same sex marriage or homosexuality is not in itself an offence nor is the expression of religious views or the display of religious symbols. The European Convention on Human Rights and the Charter of Fundamental Rights of the European Union state that all people are guaranteed the right to freedom of thought, conscience and religion along with the freedom of expression. These freedoms include the freedom to hold opinions and to receive and impart information and ideas without interference by public authority. It is important that those wishing to debate the issue of same sex marriage are able to express views and opinions which may be disagreed with and which may cause concern.

Crown Office and Procurator Fiscal Service (COPFS) recognise the sensitivity of the issues and the strength of opinion surrounding same sex marriage. COPFS will consider any incident reported to it involving criticism of or support for same sex marriage on its facts and circumstances. Views expressed or comments made in relation to same sex marriage in ways which do not incite hatred or violence towards a particular person or group of people and which do not cause or intend to cause public disorder will not be the subject of criminal prosecution.

In considering whether a prosecution is appropriate, consideration will be given to the facts of the case, the context in which any statements are made or actions taken and wider issues in relation to public safety, the protection of public order and the protection of the rights and freedoms of any victims. Any decision to take proceedings in relation to cases of this nature will be approved by Crown Counsel”.

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